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FEDERAL  LAW  AND 
FEDERAL  COURTS 


INSTRUCTION     PAPER 


PRBPARBD  BT 


HENRY  BILLINGS  BROWN,  LL.D. 

Former  Justice  of  the  Supreme  Court 
OF  THE  United  States 


AMERICAN    SCHOOL    OF    CORRESPONDENCE 

CHICAGO  IU.INOIS 

U.S.A. 


T 


\. 


coptrioht  1912  bt 
American  School  of  Correspondencb 


Entered  at  Stationers'  Hall,  London 
All  Rights  Reserved 


^ 
^ 


^ 


CONTENTS 


CHAPTER  I 

Scope  of  Federal  Jurisprudence  ^^^^ 

1.  Articles  of  confederation 1 

2.  The  constitution 2 

3.  Original  jurisdiction  of  Supreme  Court 2 

4.  Distinction  between  confederation  and  constitution 4 

5.  Extent  of  federal  judicial  power 6 

CHAPTER  II 
Criminal  Jurisdiction 

6.  Power  of  Congress  to  enact  criminal  laws 21 

7.  Division  of  criminal  cases 21 

8.  Summary 32 


FEDERAL  LAW   AND 
FEDERAL   COURTS 


CHAPTER  I 

SCOPE  OF  FEDERAL  JURISPRUDENCE 

§  1.  Articles  of  Confederation.  The  Articles  of  Confed- 
eration of  1778  were  the  genesis,  but  not  the  foundation  of 
the  Federal  Government.  These  Articles  did  not  contem- 
plate a  government  in  the  ordinary  sense,  but  were  a  mere 
league  between  the  States  "for  their  common  defense,  the 
security  of  their  liberties,  and  their  mutual  and  general 
welfare."  As  little  power  as  possible  was  given  to  the 
Union;  as  much  as  possible  was  reserved  to  the  States. 
There  was  no  provision  for  an  executive  head,  but  during 
a  recess  of  Congress,  a  Committee  of  the  States  was  given 
very  limited  executive  powers.  Congress  could  borrow 
money,  but  could  not  repay  it,  except  by  requisitions — 
often  disregarded — upon  the  States.  Congress  had  no 
power  to  levy  taxes  for  any  purpose,  but  might  order  the 
States  to  levy  them.  It  had  no  power  to  raise  an  army 
except  by  requisition  upon  the  States,  which  reserved  to 
themselves  the  right  to  appoint  all  officers  below  the  rank 
of  Colonel.  They  made  no  provision  for  the  organization 
of  courts  excepting  in  admiralty,  though  Congress  was 
made  a  court  for  the  trial  of  territorial  disputes  between 
the  States ;  but  had  no  power  to  enforce  its  decrees.  Lack- 
ing courts.  Congress  had  no  power  to  punish  offenses 
against  its  own  laws.  No  important  step  could  be  taken 
without  the  assent  of  nine  States.  Underlying  the  entire 
scheme  was  a  jealousy  of  the  States  toward  each  other,  but 
little  less  intense  than  the  hostility  they  exhibited  toward 

Copyright,  1912,  hy  the  American  School  of  Correspondence.  1 


2      FEDEBAL  LAW  AND  FEDERAL  COURTS 

the  mother  country.  Under  these  Articles  the  Revo- 
lutionary War  was  carried  to  a  successful  conclusion;  but 
their  impotence  became  so  clearly  manifest  that  it  was  uni- 
versally felt  that  the  bonds  of  the  union  must  be  strength- 
ened, or  the  Confederacy  must  be  dissolved  into  its  original 
States.  The  spectre  of  arbitrary  power  seemed  to  be  con- 
stantly hovering  over  the  deliberations  of  the  Convention, 
and  the  fear  that  the  central  government  might  be  made 
too  strong  resulted  in  a  denial  of  authority  absolutely 
indispensable  to  its  existence. 

§2.  The  Constitution.  Of  all  the  causes  which  con- 
tributed to  the  adoption  of  the  Constitution  the  most  im- 
portant was  the  necessity  felt  for  a  court  representative  of 
all  the  States,  with  power  to  reconcile  or  decide  between  the 
conflicting  opinions  of  the  courts  of  different  States,  to 
enforce  obedience  to  the  laws  of  Congress,  to  aid  in  the 
collection  of  a  national  revenue,  and  to  afford  to  foreigners 
and  citizens  of  different  States  an  impartial  tribunal  for 
the  adjustment  of  their  differences,  uninfluenced  by  local 
feeling  or  prejudice.  The  Convention  voted  unanimously 
for  the  establishment  of  a  Supreme  Court ;  but  it  was  only 
after  a  prolonged  contest  and  a  strong  protest  from  the 
minority,  that  authority  was  given  to  Congress  to  estab- 
lish inferior  courts  with  a  jurisdiction  strictly  limited  to 
cases  within  the  purview  of  the  Constitution.  The  outcome 
of  this  controversy  was  that  original  jurisdiction  was  given 
to  the  Supreme  Court  in  but  two  classes  of  cases.^ 

§3.  Original  Jurisdiction  of  Supreme  Court.  Cases 
Affecting  Foreign  Representatives.  First,  cases  **  affecting 
ambassadors  or  other  public  ministers  or  consuls."  This 
concession  appears  to  be  an  offshoot  of  the  general  exclu- 
sive authority  vested  in  the  Federal  Government  of  con- 
trolling our  relations  with  foreign  states,  whose  representa- 
tives are  thus  accorded  the  extraordinary  privilege  of 
suing  directly  in  the  highest  court  of  the  country.  This 
power  has  been  rarely,  if  ever  exercised,  as  Congress  gave 
the  same  jurisdiction  to  the  inferior  courts  of  the  United 

1  Const.  Act.  III.  §  2. 


FEDERAL  LAW  AND  FEDERAL  COURTS       3 

States,  though  it  is  denied  to  the  courts  of  the  several 
States.  This  jurisdiction  is  principally  of  value  when  the 
foreign  representative  sues  as  plaintiff,  as  no  principle  of 
international  law  is  better  settled  than  that  the  person  and 
property  of  a  foreign  ambassador  or  minister,  (though 
not  a  consul)  are  exempt  from  the  process,  both  civil  and 
criminal,  of  the  nation  to  which  he  is  accredited.  He 
cannot  be  sued  for  a  debt  or  a  tort,  and  is  not  even  amenable 
to  its  criminal  laws.  A  violation,  however  atrocious,  of 
its  criminal  laws,  can  only  be  punished  by  demanding  his 
recall  or  sending  him  his  passport.  The  object  of  all  this 
is  to  prevent  any  fear  that  representatives  of  a  foreign 
power  will  be  harassed  by  litigation  here.  A  foreign  min- 
ister owes  no  allegiance  to  the  country  to  which  he  is  sent, 
and  his  house  is  not  only  his  castle,  but  to  all  intents  and 
purposes,  a  piece  of  foreign  territory. 

Cases  in  Which  a  State  Shall  Be  a  Party.  Second,  the 
Supreme  Court  also  has  jurisdiction  of  ''cases  in  which  a 
State  shall  be  a  partj^"  Actions  between  two  different 
States,  usually  turning  upon  the  location  of  a  boundary 
line,  or  upon  riparian  or  water  rights,  are  not  of  infrequent 
occurrence.  It  was  at  first  held  that  this  jurisdiction  ex- 
tended to  suits  against  a  state  by  citizens  of  other  States 
or  by  foreigners.^  But  this  assertion  of  jurisdiction  evoked 
such  a  storm  of  protest  that  it  was  taken  away  by  the 
Eleventh  Amendment  to  the  Constitution. 

Appellate  Jurisdiction.  In  all  but  the  above  two  classes 
of  cases,  the  Supreme  Court  has  only  appellate  jurisdic- 
tion. But,  in  addition  to  this,  a  further  provision  of  the 
same  Article  of  the  Constitution  defines  and  limits  the  judi- 
cial power  of  the  Federal  Government,  by  whichever  of  the 
Federal  courts  this  power  is  exercised.  The  limit  of  this 
jurisdiction  may  be  said  to  be  determined  by  the  nature  of 
the  concessions  made  by  the  States  to  the  Federal  Govern- 
ment in  adopting  the  Constitution,  and  by  the  legislative 
power  vested  in  Congress.  As  already  observed,  the  old 
Confederation  was  a  mere  league  between  the  States,  by 

8  Chieholm  v.  Georgia,  2  Dall.  419. 


4      TEDERAL  LAW  AND  FEDERAL  COURTS 

which  certain  rights  were  surrendered  to  the  Federal  Gov- 
ernment, hut  each  State  was  left  to  determine  the  extent 
of  its  obligations  and  its  ability  and  willingness  to  carry 
them  out.  Their  views  might  be  as  numerous  as  the 
States.  Massachusetts  might  take  one  view;  New  York 
another;  Virginia  a  third,  and  Georgia  a  fourth.  No  pro- 
vision was  made  for  securing  unity  of  sentiment,  or  con- 
solidation of  action.  There  was  absolutely  nothing  upon 
which  Congress  or  foreign  powers  could  rely  but  the  good 
faith  and  ability  of  the  States. 

.§4.  Distinction  between  Confederation  and  Constitu- 
tion. The  Constitution  was  also  a  league  of  the  States — 
but  it  was  much  more  than  that.  By  this  instrument  the 
States  surrendered  to  the  general  government  not  only 
the  powers  already  vested  in  the  Confederation,  but  what 
was  of  no  less  importance,  the  authority  to  make  these 
powers  effective  and  compel  not  only  the  obedience  of  tlic 
States,  but  the  obedience  of  each  individual  citizen  through- 
out the  Union.  For  this  purpose  it  erected  a  sei^arate  and 
independent  government,  with  an  executive  head  called  a 
President;  a  legislative  body  consisting  of  two  chambers, 
one  representative  of  the  States,  the  other  of  the  people 
of  the  States;  a  Supreme  Court  with  jurisdiction  over  the 
courts  of  all  the  States,  and  its  own  inferior  courts,  or 
courts  of  first  instance,  with  jurisdiction  to  enforce  the 
laws  of  Congress,  to  punish  their  violation,  and  to  take 
cognizance  of  certain  interstate  and  international  con- 
troversies. 

The  distinction  between  the  Articles  of  Confederation 
and  the  Constitution  was  akin  to  that  between  a  partner- 
ship and  a  corporation.  To  an  ordinary  partnership  each 
partner  makes  a  contribution,  with  the  understanding  that 
he  may  participate  in  its  business  and  its  profits,  or  may 
withdraw  his  share  and  compel  a  dissolution.  Upon  the 
other  hand,  to  a  corporation  a  stockholder  makes  a  contri- 
bution, but  with  the  understanding  that  its  management 
shall  be  entrusted  to  a  board  of  directors,  of  which  he  may 
or  may  not  be  a  member,  with  power  to  compel  his  ac- 


FEDERAL  LAW  AND  FEDERAL  COURTS       5 

quiescence,  or  conduct  the  business  regardless  of  his  wishes. 
It  is  immaterial  in  this  connection  that  the  Thirteenth 
Article  of  the  Confederation  provided  that  'Hhe  Union  shall 
be  perpetual,"  since  Congress  having  no  army  or  navy  of 
its  own  was  powerless  to  enforce  this  agreement,  or  coerce 
a  State,  at  least  without  the  consent  of  nine  others. 

But  it  must  not  be  supposed  that  the  consent  of  the 
States  to  subordinate  their  views  to  the  Federal  Govern- 
ment in  the  particulars  covered  by  the  Constitution  was 
accomplished  without  a  struggle.  The  State  legislatures 
not  only  protested  against  the  encroachments  of  the  gen- 
eral Government,  but  one  of  them  went  so  far  as  to  de- 
nounce the  penalty  of  death  against  anyone  who  should 
attempt  to  enforce  the  judgment  of  the  Supreme  Court  in 
a  certain  case  which  happened  to  be  very  unpopular.^ 

The  courts  of  the  several  States  which  had  been  accus- 
tomed to  interpret  their  own  Constitutions  as  well  as  those 
of  their  sister  States,  were  loth  to  surrender  the  power  to 
construe  the  Constitution  of  the  United  States,  or  to  recog- 
nize the  superior  authority  of  the  court  which  Congress 
had  established  for  that  very  purpose.  In  an  early  case 
coming  up  from  Virginia,  the  Court  of  Appeals  of  that  State 
having  unanimously  held  that  the  Act  of  Congress  allow- 
ing appeals  from  the  Supreme  Court  of  the  States  to  the 
Supreme  Court  of  the  United  States  was  unconstitutional, 
its  judgment  was  unanimously  reversed.^  The  effect  of 
the  decision  of  the  Virginia  court  would  have  been  to 
leave  the  courts  of  each  State  to  construe  the  Consti- 
tution to  suit  themselves,  without  the  right  to  appeal  to 
the  higher  court,  which  it  was  the  very  object  of  the  Con- 
stitution to  secure.  It  can  now  be  seen  that  the  affirm- 
ance of  the  Virginia  judgment  would  have  nullified  the 
Constitution  in  a  very  important  particular,  and  probably 
wrecked  the  whole  structure  of  the  Government.  Different 
phases  of  the  same  general  question  have  since  been  pre- 
sented, but  always  with  the  expression  of  an  opinion,  that 

3  Worcester  v.  Georgia,  6  Pet.  515. 

*  Martin  v.  Hunter,  1  Wheat.  304;  see  also  Cohens  v.  Virginia,  6  Wheat,  264. 


6      FEDERAL  LAW  AND  FEDERAL  COURTS 

it  was  essential  to  the  perpetuity  of  the  government  that 
the  interpretation  of  the  Constitution  must  finally  rest  with 
the  supreme  tribunal  of  the  Federal  Government. 

The  rights  of  the  States  are  perfectly  protected  and 
strengthened  by  the  limitations  placed  upon  the  Federal 
judicial  power,  which  still  leaves  in  the  hands  of  the  State 
courts  nineteen-twentieth s  of  the  litigation  of  the  country. 
All  the  controversies,  which  are  constantly  arising  between 
citizens  of  the  same  State,  are  justiciable  in  the  local  courts, 
without  appeal  to,  or  possibility  of  interference  by  the  Fed- 
eral courts.  It  is  only  when  some  claim  is  made  under  the 
Constitution  of  the  United  States  or  a  law  of  Congress,  that 
the  interposition  of  the  Federal  courts  becomes  possible. 
It  is  true  that  these  cases  are  often  of  great  importance 
and  command  a  corresponding  attention  in  the  newspapers, 
but  in  number  and  in  their  influence  upon  the  daily  life  of 
the  people,  they  bear  a  very  small  proportion  to  the 
immense  business  of  the  local  courts. 

§  5.  Extent  of  Federal  Judicial  Power.  It  is  necessary 
to  consider  in  some  detail  the  extent  and  limits  of  the 
judicial  power  of  the  Federal  courts.  It  may  be  said  in 
general  that  this  power  is  commensurate  with  the  legisla- 
tive power  of  Congress.  Upon  whatever  subject  Congress 
has  the  power  to  legislate  under  the  Constitution,  the 
Federal  courts  have  the  power  to  interpret  such  legis- 
lation, and  to  adjudicate  all  questions  arising  in  direct 
connection  with  it.  Not  that  the  State  courts  may  not 
pass  upon  these  so-called  Federal  questions,  as  they  are 
constantly  doing,  but  there  is  a  reserved  right  to  appeal 
to  the  Supreme  Court  of  the  United  States  as  the  final 
arbiter.  The  cases  to  which  the  judicial  power  is  limited 
are  in  the  language  of  the  Constitution,  Article  III,  Sec- 
tion 2: 

Cases  Arising  Under  Constitution  and  Laws.  "All  cases 
in  law  and  equity,  arising  under  this  Constitution,  the  laws 
of  the  United  States,  and  Treaties  made,  or  which  shall  be 
made,  under  their  authority."  As  these  laws  and  treaties 
are  of  general  application  over  the  entire  country,  it  is 


FEDERAL  LAW  AND  FEDERAL  COURTS       7 

essential  that  the  settlement  of  such  questions  should  finally 
rest  with  a  court  whose  jurisdiction  is  correspondingly 
extensive,  and  a  conflict  among  the  State  courts  be  thus 
averted.  This  jurisdiction  exists  quite  irrespective  of  the 
citizenship  of  the  parties,  and  may  be  invoked,  though  they 
be  inhabitants  of  the  same  State  or  town.  Diversity  of 
citizenship  is  itself  a  separate  and  independent  source  of 
jurisdiction,  but  it  has  no  relation  to  this  class  of  cases. 
It  is  difficult  to  define  exactly  what  are  cases  arising  under 
the  Constitution  and  laws  of  the  United  States;  but  it  may 
be  said  in  general  that  wherever  the  plaintiff,  in  making 
out  his  case,  or  the  defendant,  in  establishing  his  defense, 
relies  upon  the  Constitution,  or  upon  a  statute  or  treaty 
of  the  United  States,  the  case  may  be  said  to  "arise"  under 
it.  It  is  only  putting  it  in  different  form  to  say,  as  has  been 
said  in  some  cases,  that  if  it  appears  that  some  right,  title, 
privilege,  or  immunity  on  which  a  recovery  depends  will  be 
defeated  by  one  construction,  or  sustained  by  an  opposite 
construction  of  the  Constitution  or  a  law  of  the  United 
States,  a  case  may  be  said  to  "arise'*  under  such  Constitu- 
tion or  law.  Instances  of  this  kind  scattered  through  the 
reports  are  so  numerous  that  any  citation  or  attempt  to 
classify  them  would  tend  rather  to  confuse  than  to  eluci- 
date the  subject. 

Perhaps  the  most  frequent  illustration  of  this  class  of 
cases  grows  out  of  the  power  given  to  Congress  by  the 
Constitution  to  establish  bankrupt  laws,  and  to  promote 
the  progress  of  science  by  issuing  patents  and  copyrights. 
Suits  for  the  relief  of  poor  debtors  through  the  operation 
of  the  bankrupt  act,  and  suits  for  the  infringement  of  pat- 
ents of  inventors,  and  the  copyrights  of  authors  are  so 
frequent  and  so  distinctive  as  almost  to  constitute  a  sepa- 
rate branch  of  jurisprudence,  and  the  establishment  of  a 
separate  court  of  patent  appeals  is  already  a  matter  of 
serious  contemplation. 

The  original  jurisdiction  under  this  clause  is  not  exclu- 
sive in  the  Federal  courts,  since  cases  are  frequently  begun 
in  a  State  court  without  suspicion  of  a  Federal  question 


8      FEDEBAL  LAW  AND  FEDERAL  COURTS 

being  involved.  Such  a  question  may  first  arise  when  the. 
defense  is  put  in,  but  the  jurisdiction  of  the  court  is  not 
thereby .  ousted,  and  the  case  may  proceed  to  judgment, 
saving  to  the  parties  an  ultimate  appeal  to  the  Supreme 
Court  of  the  United  States.  Such  jurisdiction  might  doubt- 
less have  been  made  exclusive  in  the  Federal  courts,  but 
Congress  wisely  omitted  to  do  so.  If  the  action  be  orig- 
inally begun  in  the  Federal  court,  the  existence  of  a  Federal 
question  must  be  raised  by  the  plaintiff  in  his  declaration 
or  bill,  but  if  begun  in  a  State  court,  it  may  be  raised  on  an 
application  for  a  removal  of  the  case  to  the  Federal  court, 
as  may  be  done,  if  a  Federal  question  be  really  involved; 
or  it  may  be  raised  after  judgment  in  the  State  court,  upon 
a  writ  of  error  from  the  Supreme  Court  of  the  United  States 
to  the  highest  court  of  the  State,  to  which  the  parties  must 
resort  before  appealing  to  the  Supreme  Court. 

Cases  Affecting  Foreign  Representatives.  The  inclusion 
within  the  judicial  power  of  the  United  States  of  *'all  cases 
affecting  ambassadors  or  other  public  ministers  or  con- 
suls," has  been  already  considered  in  connection  with  the 
original  jurisdiction  of  the  Supreme  Court.  This  jurisdic- 
tion is  exclusive  of  the  State  courts,  which  cannot  take  cog- 
nizance of  such  cases.''  It  has  been  made  a  question  whether 
this  jurisdiction  was  not  intended  to  be  exclusive  in  the 
Supreme  Court,  but  in  apportioning  the  jurisdiction  of  the 
several  courts  in  the  Judiciary  Act  of  1789,  Congress  pro- 
vided. Section  13,  that  the  Supreme  Court  should  have 
exclusive  jurisdiction  of  all  suits  against  ambassadors, 
etc.,  but  that  such  jurisdiction  should  be  original  but  not 
exclusive  in  actions  brought  by  them.  This  is  carried  into 
Section  233  of  the  New  Judicial  Code  passed  by  the  62d 
Congress,  which  provides  explicitly  for  actions  by  and 
against  them. 

Admiralty  Cases.  **A11  cases  of  admiralty  and  maritime 
jurisdiction"  are  also  included  within  the  Federal  judicial 
power,  and  constitute  one  of  the  most  important  sources 
of  Federal  jurisdiction.    As  the  Constitution  extends  this 

5  Judicial  Code  of  March  3,  1911;  see  256,  sub.  8. 


FEDERAL  LAW  AND  FEDERAL  COURTS       9 

power  to  ''all  cases"  of  this  description,  it  is  not  only 
exclusive  of  the  State  courts,  but  it  is  at  least  doubtful 
whether  Congress  has  any  power  to  extend  or  limit  it.  As 
Congress  has  never  exercised  such  power — if  it  possesses 
it — it  becomes  important  to  determine  what  are  cases  of 
admiralty  and  maritime  jurisdiction  within  the  meaning 
of  the  Constitution.  This  has  been  an  extremely  fertile 
source  of  controversy  ever  since  the  organization  of  the 
Federal  courts,  and  can  hardly  yet  be  said  to  be  definitely 
settled.  It  depends  first,  upon  the  character  of  the  waters 
upon  which  the  controversy  arises,  and  second,  the  nature 
of  the  action. 

To  What  Waters  Applicable.  It  may  be  said  that  all 
the  courts,  including  even  the  Supreme  Court  itself,  have 
been  divided  upon  the  question  whether  it  was  limited  to 
such  cases  as  were  within  the  cognizance  of  the  English 
court  of  Admiralty,  at  the  time  of  the  adoption  of  the 
Constitution,  or  was  an  expansive  power  depending  upon 
the  character  of  the  waters  of  this  country  and  the  necessi- 
ties of  its  commerce.  As  was  natural,  the  courts  at  first 
adhered  to  the  English  precedents,  and  held  that  jurisdic- 
tion could  only  be  exercised  in  cases  arising  upon  the  high 
seas,  or  waters  within  the  ebb  and  flow  of  the  tide.  So  far 
as  England  was  concerned,  this  was  a  sensible  conclusion, 
since  all  the  important  commerce  and  the  ports  of  that 
country  were  upon  tidal  waters.  But  when  it  is  considered 
that  practically  all  the  vast  internal  commerce  of  this 
country  is  upon  waters  unaffected  by  the  ebb  and  flow  of 
the  tide,  it  is  evident  that  the  English  criterion  is  utterly 
inapplicable  to  the  great  rivers  and  lakes  of  the  American 
continent.  It  was  an  inevitable  result  of  this  physical  dif- 
ference between  the  two  countries,  that  the  cases  to  which 
was  applied  the  English  test,  should  be  solemnly  overruled 
by  the  Supreme  Court,  as  to  cases  arising  upon  the  Great 
Lakes,  and  the  modern  doctrine  firmly  established,  that  the 
admiralty  jurisdiction  extends  to  all  navigable  waters  of 
the  United  States,®  and  that  waters  should  be  considered 

•  The  Genesse  Chief,  12  How.  443;  The  Eagle,  8  Wall  15. 


10  FEDERAL  LAW  AND  FEDER/VL  COURTS 

navigable  in  law  which  are  navigable  in  fact.  This  decision 
was  one  of  the  most  important  ever  pronounced  by  the 
Supreme  Court,  and  at  once  doubled  the  jurisdiction  of 
the  admiralty  courts.  While  such  jurisdiction  had  there- 
tofore been  limited  to  the  comparatively  few  ports  upon 
the  Atlantic,  Pacific,  and  Gulf  coasts,  it  marched  at  once 
into  the  interior,  and  took  possession  of  every  port  upon 
the  Great  Lakes  and  the  rivers  of  the  country.  Attempts 
were  at  first  made  to  limit  it  to  the  Lakes,  but  they  were 
ineffectual.  With  each  successive  case  the  jurisdiction  was 
widened  to  take  it  in,  until  finally  the  doctrine  became  so 
popular  that  it  swept  everything  before  it,  and  was  applied 
to  every  sea  or  stream  susceptible  of  navigation  as  a  high- 
way of  commerce,  except  such  lakes  as  were  solely  within 
the  boundaries  of  a  single  State,  such  as  those  of  New 
York,  Maine,  and  Wisconsin,  and  a  few  other  States.  It 
was  even  applied  to  rivers  solely  witliin  the  limits  of  a 
single  State,  provided  they  were  used  in  connection  with 
other  waters  as  highways  of  commerce  between  different 
States."^  A  resolute  effort  was  made  to  limit  the  application 
of  the  rule  to  natural  as  distinguished  from  artificial  waters, 
but  the  distinction  was  rejected  in  a  case  where  it  was  held 
that  a  navigable  canal  used  as  a  highway  for  commerce 
between  different  States  was  a  public  water  of  the  United 
States,  and  within  its  admiralty  jurisdiction.  This  ruling 
was  subsequently  applied  to  the  Erie  Canal.^ 

Character  of  Vessels.  The  vessels  to  which  the  admir- 
alty jurisdiction  attaches  embrace  every  species  of  craft 
engaged  in  commerce  or  navigation,  whatever  be  its  size, 
form,  or  method  of  propulsion,  provided  it  be  constructed 
and  used  for  the  purposes  of  commerce.  It  does  not 
attach,  however,  to  row  boats,  a  floating  dock  or  wharf, 
a  ferry  bridge  hinged  to  a  wharf,  a  sailor's  bethel,  or  any 
floating  structure  permanently  moored  to  a  wharf,  or  other- 
wise attached  to  the  land,  since  none  of  these  structures 
is  used  for  the  purpose  of  commerce  or  navigation.    The 

7  The  Daniel  Ball,  20  Wall.  557;  The  Robert  W.  Parsonsy  191  U.  S.  17. 

8  Ex  parte  Boyer,  109  U.  S.  629. 


FEDERAL  LAW  AND  FEDERAL  COURTS      11 

use  to  which  it  is  put  thus  becomes  the  determining  factor 
upon  the  question  of  jurisdiction. 

Character  of  Cases.  Coming  now  to  the  character  of 
cases  cognizable  in  admiralty,  we  are  confronted  with  the 
same  differences  of  opinion  to  which  allusion  has  already 
been  made  in  connection  with  the  waters  upon  which  these 
cases  arise.  In  ancient  times  the  Lord  High  Admiral  of 
England  assumed  a  very  extensive  jurisdiction  not  only 
over  contracts  of  a  maritime  nature,  but  over  ordinary 
commercial  contracts,  parties  to  which  were  haled  into 
the  Admiralty  court  to  answer  for  debts  contracted,  or  inju- 
lies  suffered  upon  land,  or  upon  creeks,  bays  or  arms  of 
the  sea,  and  not  of  a  maritime  nature. 

Before  the  adoption  of  the  Constitution,  however,  this 
jurisdiction  had  been  limited  by  prohibitions  from  the 
common-law  courts — between  which  and  the  court  of  admir- 
alty great  jealousy  existed — until  little  of  its  ancient  juris- 
diction remained  but  suits  for  seamen's  wages,  bottomry 
or  money  lent  upon  the  credit  of  the  ship,  salvage  where 
the  property  was  not  cast  ashore,  cases  between  part 
owners  regarding  the  employment  of  the  ship,  and  colli- 
sions and  injuries  to  property  or  person  on  the  high  seas. 
The  Supreme  Court  was  at  first  inclined  to  take  the  more 
limited  view,  but  all  the  important  recent  cases  have  fully 
established  the  doctrine  that  the  jurisdiction  extends  to 
all  contracts  of  a  maritime  nature  and  relating  to  vessels, 
their  masters  and  crews  as  the  agents  of  commerce,  includ- 
ing not  only  those  above  specified,  but  cases  of  maritime 
insurance,  bills  of  lading,  or  other  contracts  for  the  car- 
riage of  goods  or  passengers;  charter  parties,  supplies, 
labor,  and  materials  furnished  for  the  equipment  or  repairs 
of  vessels,  cases  of  general  average,  contribution,  wharfage, 
dockage,  and  preparing  cargoes  for  shipment.  Indeed,  cases 
of  this  kind  are  so  numerous  that  their  character  can  be 
arrived  at  better  by  considering  the  exceptions  to  the  gen- 
eral rule  that  every  contract  which  concerns  a  vessel  or 
its  crew  is  within  the  admiralty  jurisdiction.  Thus,  con- 
tracts for  the  original  construction  of  a  vessel  or  for  mate- 


12     FEDERAL  LAW  AND  FEDERAL  COURTS 

rials  furnished  before  she  is  launched  are  not  by  our  law 
considered  as  maritime,  for  the  simple  reason  that  the 
structure  is  not  considered  as  a  ship  until  she  is  launched 
or  takes  the  water,  and  that  up  to  this  time  the  work  is 
done  upon  land,  and  her  creditors  are  protected  by  the 
mechanics*  lien  laws  of  the  several  States.'*  This  exception 
to  the  general  rule  of  liability  is  also  an  exception  to  the 
law  of  continental  Europe,  and  to  the  early  English  law, 
both  of  which  treated  as  maritime  contracts  for  the  build- 
ing of  vessels. 

In  deference  also  to  the  English  precedents  another  ex- 
ception was  made  of  necessaries  furnished  to  the  vessel  at 
the  home  port,  or  ports  of  the  State  in  which  she  is  owned, 
upon  the  presumption  that  the  articles  were  furnished  upon 
the  personal  credit  of  the  owner,  and,  therefore,  that  no 
lien  was  contempfated.  This  rule  was  declared  at  an  early 
date  (1819),  but  was,  after  a  strenuous  effort  to  reverse 
it,  solemnly  reaflSrmed  fifty  years  thereafter.  At  the  last 
session  of  Congress,  however,  it  was  abolished  by  an  act  giv- 
ing the  same  lien  upon  domestic  as  upon  foreign  vessels, 
and  declaring  the  question  of  credit  to  the  ship  to  be  imma- 
terial. But  the  exception  was  really  of  little  practical  value, 
as  liens  are  given  by  the  laws  of  most  of  the  States,  which 
are  enforced  in  the  admiralty  courts.  It  is  incorrect  to  say 
that  the  court  of  admiralty  has  no  jurisdiction  of  neces- 
saries furnished  a  domestic  ship,  since  it  has  always  been 
held  that  a  suit  iii  personam  in  the  admiralty  will  lie 
against  the  owner,  and  if  a  lien  is  given  by  the  local  law, 
a  suit  in  rem  will  lie  to  enforce  it.  The  distinction  between 
maritime  and  non-maritime  contracts  is  sometimes  a  little 
obscure,  but  it  may  be  said  generally  that  contracts  which 
do  not  directly  concern  the  business  of  navigation,  as  for 
example,  contracts  preliminary  to  a  maritime  contract,  or 
for  services  performed,  or  articles  furnished  on  land — 
though  incidentally  connected  with  shipping — do  not  give 
rise  to  a  lien  enforcible  in  the  admiralty. 

Cases  of  Tort.    In  cases  of  tort,  the  jurisdiction  of  the 

oBoach  V.  Chapman,  22  How.  129. 


FEDERAL  LAW  AND  FEDERAL  COURTS      13 

admiralty  is  complete  where  the  damage  is  done,  or  the 
injuries  received  upon  navigable  waters,  or,  to  put  it  in 
the  familiar  words  of  the  admiralty  bar,  "locality  is  the 
test  of  jurisdiction."  In  England  this  jurisdiction  was 
limited  to  torts  not  occurring  within  the  body  of  a  county, 
which  includes  all  navigable  waters  ''where  one  may  see 
what  is  done  on  the  one  part  of  the  water,  and  on  the  other, 
as  to  see  from  one  land  to  another."  This  distinction, 
however,  has  been  repudiated  in  this  country  and  abrogated 
by  Act  of  Parliament  in  England.  The  most  common  cases 
of  maritime  torts  are  collisions,  damages  to  ships  by  neg- 
ligence of  various  kinds,  and  assaults  by  officers  upon  sea- 
men and  passengers.  Whether  the  word  "tort"  as  thus 
used  includes  every  act  within  the  common-law  definition  of 
the  word,  or  is  confined  to  such  as  are  in  some  way  con- 
nected with  the  equipment,  navigation,  or  discipline  of  the 
ship,  has  not  been  judicially  decided.  The  former  definition 
would  cover  every  wrongful  act  done  upon  navigable 
waters,  such  as  an  assault  by  one  passenger  upon  another; 
or  an  injury  suffered  by  one  through  the  negligence  of 
another,  and  make  locality  the  sole  test  of  jurisdiction. 
The  latter  would  limit  it  to  torts  committed  by  the  officers 
or  crew  in  conducting  the  navigation  or  enforcing  the  dis- 
cipline of  the  ship.  The  broader  view  is  within  the  letter 
of  the  definition,  but  it  may  well  be  doubted  whether,  for 
example,  a  libel  or  slander  put  in  circulation  on  board  a 
ship  could  be  made  the  basis  of  a  suit  in  admiralty.  Such 
cases  are  peculiarly  within  the  jurisdiction  of  the  common- 
law  courts  and  a  trial  by  jury.  This  is  the  .view  taken  by 
Mr.  Benedict  in  his  work  upon  Admiralty.  The  sugges- 
tion, however,  is  rather  academic  than  practical,  as  in- 
stances of  this  kind  must  be  exceedingly  rare,  while 
assaults  by  officers  upon  seamen  are  unfortunately  frequent 
and  often  attended  by  the  grossest  brutality. 

A  much  more  serious  question,  however,  arises  in  cases 
which,  for  want  of  a  better  word,  may  be  designated  as 
amphibious  torts,  by  which  we  understand  an  injury  done 
upon  one  element,  and  damage  suffered  upon  the  other. 


14     FEDERAL  LAW  AND  FEDEEAL  COURTS 

Cases  of  this  kind  are  by  no  means  of  infrequent  occur- 
rence, and  usually  concern  damages  suffered  by  ships  by 
coming  in  contact  with  objects  affixed  to  the  land,  or  dam- 
ages done  by  ships  to  bridges,  piers,  derricks  and  like  fix- 
tures. With  regard  to  this,  the  rule  in  England  is  settled 
by  the  Admiralty  Court  Act  in  favor  of  the  jurisdiction, 
while  in  America  the  rule  was  supposed,  until  recently,  to 
be  as  firmly  settled  the  other  way. 

I  have  already  stated  that  this  reservation  to  the  Federal 
courts  is  of  **all  cases"  of  admiralty  and  maritime  juris- 
diction. Placing  its  own  construction  upon  this  clause. 
Congress  has  declared  that  this  provision  shall  be  exclu- 
sive of  the  State  courts.  This  at  one  time  became  of  great 
importance,  as  many  of  the  State  legislatures  had  enacted 
laws  giving  liens  upon  vessels  for  causes  of  action  unques- 
tionably maritime  in  their  nature,  and  also  authorizing  the 
enforcement  of  such  liens  by  proceedings  in  the  State  courts 
analogous  to  those  given  for  the  enforcement  of  a  mechan- 
ic's lien.  But  in  a  case  arising  in  1866,  the  Supreme  Court 
held  that  these  proceedings  were  an  exercise  of  admiralty 
jurisdiction  inhibited  to  the  State  courts  by  the  act  of 
Congress,  and  that  their  proceedings  were  wholly  void.^** 
In  view  of  the  control  by  Congress  of  all  commerce  between 
the  States  and  with  foreign  nations,  and  of  our  diplomatic 
relations  with  such  nations,  and  the  use  of  our  ports  and 
harbors  by  the  vessels  of  other  powers,  there  is  a  peculiar 
appropriateness  in  assuming  this  jurisdiction,  and  thus 
preventing  foreign  vessels  being  annoyed  by  suits  brought 
in  the  State  courts  under  the  varying  laws  of  the  different 
States.  The  exclusive  character  of  this  jurisdiction  has 
been  recently  settled  by  Congress  in  the  Judicial  Code,  Sec. 
256,  Sub.  33.  This  rule,  however,  does  not  interfere  with 
the  ordinary  law  and  equity  jurisdiction  which  remains 
unimpaired  as  against  the  owners  and  officers  of  foreign 
vessels,  who  are  liable  to  suit  upon  the  same  terms  as  our 
own  citizens,  subject  in  cases  of  large  amount  to  a  removal 
to  the  Federal  court.     The  distinguishing  feature  of  an 

10  The  Moses  Taylor,  4  Wall.  411. 


FEDERAL  LAW  AI^D  FEDERAL  COURTS      15 

admiralty  suit  is  the  power  to  proceed  against  a  sWp,  or 
other  thing  itself  for  the  collection  of  a  demand  or  redress 
of  a  grievance,  and  the  sale  of  such  ship  or  thing  divested 
of  all  prior  liens,  to  satisfy  the  judgment  of  the  court. 
The  State  court  may  proceed  against  the  person  of  the  ship 
owner,  and  may  even  attach  and  sell  the  ship  as  his  prop- 
erty, but  such  sale  would  convey  only  his  interest,  subject 
to  all  prior  liens. 

Cases  to  WJiich  the  U.  S.  Are  a  Party.  The  Federal  judi- 
cial power  also  extends  ''to  controversies  to  which  the 
United  States  shall  be  a  party."  This  concession  extends 
to  all  suits,  both  civil  and  criminal,  for  the  punishment  of 
crimes  against  the  Federal  laws,  for  the  collection  of  Fed- 
eral revenue,  to  enforce  its  bonds  and  other  obligations, 
and  to  suits  against  States  as  well  as  against  individuals. 
As  a  sovereign  cannot  be  sued  except  by  his  own  permission, 
a  suit  will  not  lie  against  the  United  States  except  in  certain 
cases,  provided  for  in  the  Court  of  Claims  Act,  but  the  tend- 
ency is  rather  to  increase  than  to  restrict  this  power,  and 
the  laws  in  this  connection  are  becoming  more  liberal.  It 
may  be  said  in  general  that  any  person  having  a  claim 
against  the  United  States,  founded  upon  an  act  of  Con- 
gress, regulation  of  an  executive  department,  or  a  contract, 
may  sue  the  Government  as  if  it  were  a  private  individual, 
but  that  claims  for  injuries  or  torts  can  only  be  allowed  by 
the  action  of  Congress.*^ 

Cases  hetiveen  States.  The  fifth  division  of  the  judicial 
power  embraces  ''controversies  between  two  or  more 
States."  Allusion  has  already  been  made  to  a  similar 
clause  in  speaking  of  the  original  jurisdiction  of  the 
Supreme  Court,  where  the  language  used  is  "cases  to 
which  a  State  shall  be  a  party."  But  a  declaration  that 
the  Supreme  Court  may  assume  jurisdiction  of  cases  in 
which  a  State  shall  be  a  party  is  not  intended  to  confer  a 
new  jurisdiction,  but  merely  to  say  that,  if  the  jurisdic- 
tion exists  at  all  in  the  Federal  courts,  it  may  be  exercised 
by  the  Supreme  Court.    The  clause  above  quoted  confers 

"Judicial  Code,  §145. 


16     FEDERAL  LAW  AND  FEDERAL  COURTS 

the  jurisdiction  upon  the  Federal  courts  in  controversies 
between  two  or  more  States.  These  controversies  have  been 
a  fertile  source  of  litigation  ever  since  the  original  Articles 
of  Confederation  were  adopted,  and  a  year  rarely  passes 
that  the  Supreme  Court  is  not  called  upon  to  adjust  a  State 
boundary  or  settle  some  other  question  in  dispute.  While 
the  boundary  cases  constitute  the  most  numerous  class, 
they  are  by  no  means  the  only  source  of  litigation  between 
the  States.  Ordinary  causes  of  contention  between  indi- 
viduals occasionally  arise  between  the  States  and  are  pro- 
ductive of  litigation. 

Actions  to  determine  water  rights  upon  rivers  flowing 
through  different  States,  are  of  not  infrequent  occurrence, 
and  occasionally  a  case  arises  where  a  State  has  assumed 
ownership  of  bonds  issued  by  another  State,  and  has 
brought  suit  in  the  Supreme  Court  for  the  enforcement  of 
this  obligation. 

Behveen  a  State  and  Citizens  of  Another  State.  The 
judicial  power  also  extends  to  "controversies  between  a 
State  and  citizens  of  another  State."  This  is  now  of  little 
consequence,  as  it  applies  only  where  a  State  sues  as  plain- 
tiff. It  was  originally  held  in  the  celebrated  Chisholm  case 
that  a  State  could  be  sued  by  a  citizen  of  another  State,  but 
the  decision  created  such  a  ferment  that  an  amendment  to 
the  Constitution  was  hurried  through  prohibiting  such 
suits.  This  renders  the  above  clause  of  little  practical 
value.  ^2 

Between  Citizens  of  Different  States.  The  clause  imme- 
diately following  conferring  jurisdiction  of  ''cases  between 
citizens  of  different  States"  is  the  foundation  of  the  juris- 
diction of  at  least  four-fifths  of  the  law  and  equity  cases  in 
the  courts  of  the  United  States.  Its  origin  is  found  in  the 
not  unnatural  fear  that  a  citizen  of  another  State,  prose- 
cuting a  large  claim  in  the  local  courts,  would  have  to 
encounter  a  certain  local  prejudice  of  which  a  popular  citi- 
zen would  not  hesitate  to  avail  himself  as  against  a  stranger 
or  perhaps  a  foreigner.    It  was  thought  best  by  the  framers 

12  Chisholm  v.  Georgia,  2  Dall.  419. 


FEDERAL  LAW  AXD  FEDERAL  COURTS      17 

of  the  Constitution  to  establish  a  court  for  the  adjudication 
of  claims  by  citizens  of  other  States,  which  should  be  held 
in  the  largest  town  of  the  District,  which  was  usually 
co-extensive  with  the  State  itself,  by  a  judge  of  exceptional 
ability,  and  the  jurors  of  which  should  be  selected  from 
the  whole  district,  and  not  from  the  immediate  locality. 
The  wisdom  of  this  provision  is  shown  by  its  history,  and 
by  the  fact  that  a  plaintiff  citizen  of  another  State,  having 
his  choice  of  jurisdictions,  almost  invariably  elects  to  sue 
in  a  Federal  court,  while  if  sued  by  a  resident  plaintiff  in 
a  State  court,  he  usually  removes  it  to  a  Federal  court,  as 
he  is  authorized  to  do  by  statute.  The  jurisdiction  exists, 
whatever  be  the  cause  of  action,  and  is  dependent  alone 
upon  diversity  of  citizenship  and  the  amount  involved.  It 
was  not  intended  that  actions  for  small  amounts  should 
be  brought  in  the  Federal  courts,  as  the  arguments  in  favor 
of  this  jurisdiction  do  not  apply  to  cases  of  small  magni- 
tude, and  are  offset  by  the  greater  expense  of  carrying  on 
litigation  in  a  distant  town.  This  amount  was  fixed  at  first 
at  $500,  but  this  was  subsequently  raised  by  the  Judicial 
Code,  Sec.  24,  to  $3,000.  If  the  plaintiff  recovers  less  than 
this  amount,  he  gets  no  costs,  but  in  the  discretion  of  the 
court,  may  be  required  to  pay  them. 

It  will  be  noticed  that  this  clause  is  limited  to  suits 
** between  citizens  of  different  States."  Two  important 
questions  arise  in  connection  with  this  language.  In  the 
first  place,  can  a  corporation  be  a  citizen  independent  of 
the  citizenship  of  its  stockholders  ?  It  was  at  first  thought 
that  it  could  not,  and  hence,  that  the  corporation  could  not 
sue  unless  the  incorporators  could  sue.  This  was  decided  in 
1809,  when  corporations  other  than  banks  and  insurance 
companies  were  scarcely  known,  but  in  view  of  their  enor- 
mous increase  in  number  and  importance,  particularly  after 
the  introduction  of  railways  and  steamboats,  this  rule  was 
found  so  inconvenient,  and,  in  fact,  so  impossible,  that  the 
early  cases  were  overruled,  and  the  modern  doctrine  estab- 
lished, that  a  corporation  is  conclusively  presumed  to  be 
a  citizen  of  the  State  by  which  it  is  incorporated  and  from 


18     FEDERAL  LAW  AND  FEDERAL  COURTS 

which  it  receives  its  charter,  even  though  its  stockholders 
be  citizens  of  the  same  State  as  the  opposite  party.^^  The 
substance  of  this  is  that  a  corporation  has  an  independent 
citizenship  of  its  own,  regardless  of  that  of  its  stockholders. 
The  result  has  been  an  enormous  increase  in  the  business 
of  the  Federal  courts,  and  the  assumption  of  jurisdiction  by 
those  courts  of  the  great  constitutional  cases  to  which  the 
existence  and  operation  of  these  corporations  have  given 
birth.  It  is  not  too  much  to  say  that  half  the  cases  in 
number  before  the  Supreme  Court,  and  much  more  than 
half  in  importance,  are  corporation  cases. 

In  connection  with  this  same  clause  it  was  decided  at  an 
early  day  that  the  words  "citizens  of  different  States" 
excluded  citizens  of  the  Territories  and  of  the  District  of 
Columbia;  and  this  rule  has  been  adhered  to,  notwith- 
standing that  every  argument  in  favor  of  the  jurisdiction 
between  citizens  of  States  applies  with  equal  force  to  citi- 
zens of  the  Territories  and  of  the  District.^*  It  is  a  some- 
what curious  reversal  of  the  maxim  that  ''The  letter  killeth 
but  the  spirit  giveth  life. ' ' 

Claimants  of  Lands  under  Conflicting  Grants.  Another 
class  of  cases  justiciable  in  the  Federal  courts  are  those 
** between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States."  In  the  early  days  of  the  Re- 
public there  were  conflicting  titles  in  the  northwest  territory, 
in  Kentucky,  in  the  western  reserve  in  Ohio — of  which  Con- 
necticut claimed  to  be  the  owner — as  well  as  to  the  Wyo- 
ming Valley  in  Pennsylvania,  also  claimed  by  Connecticut. 
A  few  cases  under  this  clause  are  reported  in  the  Supreme 
Court,  but  with  the  more  careful  delimitation  of  State 
lines,  they  have  almost  disappeared,  and  are  rarely  called 
to  the  attention  of  the  courts. 

Suits  by  and  against  Aliens.  The  final  clause  of  the 
first  paragraph  of  section  2  gives  jurisdiction  of  "cases 
between  a  State,  or  the  citizens  thereof,  and  foreign  States, 
citizens,  or  subjects."    But  little  need  be  said  concerning 

13  Louisville  £tc.  R.  E.  Co.  v.  Setson,  2  How.  497. 
"Barney  v.  Baltimore,  6  Wall.  280. 


FEDERAL  LAW  AND  FEDERAL  COURTS      19 

this  clause.  It  is  a  mere  extension  to  aliens  of  the  privi- 
lege accorded  to  citizens  of  other  States  of  the  Union,  to 
prosecute  their  cases  in  the  Federal  courts.  It  is  given  for 
the  same  reasons,  and  is  subject  to  the  same  limitations  as 
to  amount,  as  the  jurisdiction  previously  given  to  citizens 
of  different  States.  An  alien  is  one  who  at  the  time  of 
bringing  suit  is  a  subject  or  citizen  of  a  foreign  prince  or 
State.  If,  though  born  abroad,  he  has  been  naturalized  as 
an  American  citizen,  he  cannot  sue  as  an  alien  under  this 
clause,  although  if  he  has  merely  taken  out  his  first  papers 
he  is  still  regarded  as  an  alien  and  may  sue. 

In  all  cases  mentioned  in  this  section,  excepting  those 
affecting  ambassadors  and  ministers,  those  of  admiralty 
jurisdiction,  and  patent,  copyright,  or  bankruptcy  cases, 
there  is  a  concurrent  jurisdiction  in  the  State  courts,  and 
the  power  of  bringing  suits  in  or  removing  them  to  the 
Federal  courts  is  a  privilege,  but  not  a  necessity. 


CHAPTER  n 
CRIMINAL  JURISDICTION 

§6.  Power  of  Congress  to  Enact  Criminal  Laws.  So 
much  for  the  civil  jurisdiction  of  the  Federal  courts.  The 
Constitution  contains  no  such  express  grant  of  criminal 
jurisdiction  as  is  given  in  the  section  already  analyzed  with 
respect  to  civil  jurisdiction,  except  the  power  to  provide 
for  the  punishment  of  counterfeiting  the  securities  and  cur- 
rent coin  of  the  United  States,  to  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  offenses 
against  the  laws  of  nations.  There  is,  however,  a  recog- 
nition of  the  power  of  Congress  to  enact  criminal  laws, 
defining  expressly  the  crime  of  treason,  and  in  various 
amendments  to  the  Constitution,  the  right  to  an  indictment 
and  a  trial  by  jury  is  guaranteed,  as  well  as  immunities 
against  excessive  fines  and  cruel  and  unusual  punishments. 
The  power  to  make  criminal  laws  may  also  be  properly 
included  in  the  express  power  granted  by  the  last  para- 
graph of  Article  1,  Section  8:  "to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  Government  of  the  United  States  or 
any  Department  or  officer  thereof. ' ' 

The  power  of  Congress  to  punish  is  incident  to  the  power 
of  Congress  to  legislate  upon  a  particular  subject.  Given 
the  power  to  legislate,  the  power  to  punish  interference 
with  such  legislation  follows  as  a  matter  of  course.  Thus, 
the  power  to  establish  post  offices  and  post  roads,  carries 
with  it  the  power  to  protect  them  and  carry  mails  over 
them,  as  well  as  to  punish  the  theft  of  letters  or  interfer- 
ence with  the  carriers  of  the  mail.  The  great  mass  of 
criminal  jurisdiction,  including  nearly  all  offenses  against 
persons  or  property,  and  aggregating  nineteen-twentieth s 
20 


FEDERAL  LAW  AND  FEDERAL  COURTS      21 

of  the  entire  criminal  business  of  the  country,  still  remains 
in  the  State  courts.  It  is  only  where  Congress  has  seen  fit 
to  act  and  to  prescribe  penalties,  that  the  case  is  drawn  into 
the  courts  of  the  United  States.  In  comparison  with  the 
amount  of  business  done  in  the  State  courts,  the  number 
of  cases  is  very  small,  and  the  amount  of  public  attention 
drawn  to  them  by  their  peculiarities  is  out  of  all  propor- 
tion to  the  magnitude  of  the  business.  These  laws  have  been 
recently  collected  in  what  is  known  as  the  "Federal  Penal 
Code,"  which  is  really  a  codification  of  all  the  penal  stat- 
utes previously  enacted. 

§7.  Division  of  Criminal  Cases.  The  criminal  cases 
cognizable  in  the  courts  of  the  United  States  are  divisible 
into  two  general  and  distinct  classes  of  crimes,  dependent 
upon  the  consideration,  first,  of  the  locality  of  the  offense, 
and,  second,  of  its  nature. 

Dependent  upon  Locality.  First,  certain  offenses,  if 
punishable  at  all,  must  from  the  necessities  of  the  case,  be 
punished  by  the  courts  of  the  United  States,  since  they  are 
not  cognizable  by  the  State  courts,  by  reason  of  the  fact 
that  they  are  committed  outside  of  the  local  jurisdiction. 
It  is  a  principle  of  common  law  that  criminal  cases  must 
be  tried  within  the  jurisdiction  where  the  crime  was  com- 
mitted. The  Constitution  itself  requires  that  all  criminal 
trials  shall  be  held  in  the  State  where  the  crime  was  com- 
mitted, but  if  not  committed  within  any  State,  Congress 
may  provide  for  the  place  of  trial. 

High  Seas.  Prominent  in  this  class  of  cases  are  crimes 
committed  upon  an  American  vessel  while  upon  the  high 
seas,  or  other  waters  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States,  and  out  of  the  jurisdic- 
tion of  any  particular  State.  It  is  a  cardinal  principle  of 
international  law  that  the  high  seas  belong  to  nobody,  and 
are  the  common  property  of  the  entire  world,  although 
each  nation  may  punish  crimes  committed  upon  its  own 
vessels,  or  crimes  such  as  piracy,  which  are  against  the  laws 
of  all  nations.  Hence,  a  pirate  may  be  punished  under 
whatever  flag  he  sails,  or  to  whatever  country  he  belongs. 


22     FEDERAL  LAW  AND  FEDERAL  COURTS 

The  same  rule  also  applies  to  slave  traders,  but  with  the 
exception  that  the  offense  must  have  been  committed  upon 
an  American  vessel  to  give  the  courts  of  this  country  juris- 
diction. These  offenses  include  most  of  what  are  known 
as  common-law  crimes,  such  as  murder,  manslaughter,  as- 
saults of  various  kinds  and  degrees  of  enormity,  rape  or 
seduction,  robbery  and  larceny.  In  addition  to  these,  there 
are  certain  offenses  peculiar  to  the  navigation  and  man- 
agement of  vessels  which  are  deemed  worthy  of  special 
provision,  such  as  the  loss  of  life  through  the  negligence 
of  officers,  and  the  seduction  of  female  passengers,  whose 
helplessness  renders  them  an  easy  prey  to  unscrupulous 
seamen.  The  laws  applicable  to  the  high  seas  are  also  ex- 
tended to  crimes  upon  American  vessels  navigating  the 
Great  Lakes  and  their  connecting  waters.  While  these  lakes 
are  within  the  boundaries  of  the  States  and  counties  border- 
ing upon  them,  it  is  often  impossible  by  reason  of  their 
width,  to  locate  a  crime  within  a  particular  county  or  State, 
or  even  to  determine  whether  it  was  committed  on  the  Amer- 
ican or  Canadian  side  of  the  line  which  runs  through  the 
center.  Hence,  it  was  deemed  necessary  to  provide  a  court 
with  jurisdiction  co-extensive  with  the  lakes  themselves,  re- 
gardless of  international  and  State  boundary  lines.  This 
jurisdiction,  like  that  upon  the  high  seas,  is  confined  to 
crimes  upon  American  vessels. 

Reserved  Lands.  The  criminal  jurisdiction  of  the  Fed- 
eral courts  also  extends  to  crimes  committed  upon  lands 
reserved  for  the  exclusive  use  of  the  United  States,  usually 
by  purchase  for  the  erection  of  a  fort,  magazine,  arsenal, 
dockyard,  or  other  building.  Purchases  of  this  kind  are 
very  frequent,  and  are  usually  made  by  consent  of  the  legis- 
lature and  with  cession  of  jurisdiction  to  the  Federal  courts 
of  crimes  committed  within  their  limits,  though  occasion- 
ally jurisdiction  is  reserved  to  the  State.  Jurisdiction  is 
also  given  over  islands,  rocks,  and  keys  containing  depos- 
its of  guano,  which  may,  at  the  discretion  of  the  President, 
be  considered  as  appurtenant  to  the  United  States.  This 
liast  is  an  anomalous  jurisdiction,  and  rests  upon  the  propo- 


FEDERAL  LAW  AND  FEDERAL  COURTS      23 

sition  that  a  private  citizen  may  take  possession  of  an  un- 
claimed island  rich  in  guano,  and  may,  with  the  approval 
of  the  President,  practically  annex  it  to  the  United  States, 
at  least  for  jurisdictional  purposes.  The  validity  of  the 
annexation  of  Navassa  Island  in  the  Caribbean  Sea  was 
affirmed  by  the  Supreme  Court. 

The  criminal  jurisdiction  over  government  reservations 
extends  not  only  to  crimes  which  are  punishable  when  com- 
mitted at  sea,  but  to  arson,  robbery,  receiving  stolen  goods, 
and  others  of  what  may  be  called  land  offenses.  Where  a 
State  makes  a  cession  of  jurisdiction,  the  reservation  ceases 
to  belong  to  the  State  and  practically  becomes  foreign  ter- 
ritory, though  the  State  usually  reserves  the  privilege  of 
serving  its  own  process  upon  such  reservation. 

The  Nature  of  the  Offense.  The  second  grand  division 
of  the  criminal  power  of  the  Federal  courts  depends  upon 
the  nature  of  the  offense.  This  jurisdiction  is  quite  inde- 
pendent of  that  of  the  State  courts,  and  necessarily,  to  a 
large  extent,  exclusive  of  it,  though  there  are  cases,  such 
as  the  passing  of  counterfeit  money,  robbery  of  mail  car- 
riers, etc.,  wherein  the  State  courts  have  a  concurrent  juris- 
diction, and  the  offender  may  be  punished  under  the  laws 
of  the  State  or  nation.^ 

The  extent  of  this  jurisdiction  is  commensurate  with  the 
power  of  Congress.  Wherever  Congress  has  the  power  to 
legislate,  it  has  a  corresponding  authority  to  make  this 
legislation  effectual  by  punishing  infractions  of  its  laws ;  in 
neither  case  can  it  invade  the  local  and  domestic  affairs  of 
the  State. 

Treason.  The  most  prominent,  and  in  some  of  their 
aspects,  the  most  serious  of  these  crimes  are  those  aimed 
at  the  existence  and  structure  of  the  Government.  The 
best  known  of  these  is  treason,  which  consists  in  levying  war 
against  the  United  States,  or  giving  aid  and  comfort  to  its 
enemies.  Under  the  law  of  England,  as  defined  by  a  statute 
of  Edward  III.,  treason  also  consisted  of  various  other  of- 
fenses against  the  life  or  person  of  the  king,  queen,  or  imme- 

1  Fox  V.  Ohio,  5  How.  410;  Moore  v.  Illinois,  14  How.  13. 


24     FEDERAL  LAW  AND  FEDERAL  COURTS 

diate  members  of  the  royal  family,  counterfeiting  the  king's 
seals,  or  the  current  coin  of  the  realm,  or  slandering  the 
great  oflScers  of  state  or  justices  of  the  royal  courts.  But 
all  these  were  swept  away  by  the  Revolution,  and  all  other 
crimes  except  that  of  levying  war  directly  or  indirectly, 
are  now  covered  by  separate  statutes.  While  treason  has 
been  generally  spoken  of  as  the  most  atrocious  crime  of 
which  a  citizen  can  be  guilty,  and  in  some  of  its  aspects 
is  still  so  regarded,  it  must  be  admitted  that  the  denuncia- 
tion has  proceeded  as  much  from  loyalty  to  the  existing 
state  of  things  and  to  the  person  of  the  sovereign,  as  from 
any  general  consideration  of  the  enormity  of  the  offense. 
There  are  treasons  which  proceed  from  the  vilest  and  most 
detestable  motives.  There  are  offenders  equally  guilty  in 
the  eye  of  the  law,  who  may  have  been  animated  by  the 
purest  patriotism,  and  devotion  to  the  interests  of  an  op- 
pressed people.  There  are  anarchists  who  plot  the  over- 
throw of  all  governments,  both  good  and  bad,  and  slay  a 
President  chosen  by  popular  vote  as  readily  as  they  do  a 
tyrant  who  has  gained  his  throne,  perhaps  by  the  assassina- 
tion of  a  rival,  and  used  his  power  to  enslave  his  subjects. 
The  traitor  who,  like  Benedict  Arnold,  deserts  his  flag,  takes 
refuge  with  the  enemy  and  carries  on  a  campaign  against 
his  own  country,  is  deserving  of  all  the  odium  which  from 
time  immemorial  has  been  heaped  upon  him. 

Upon  the  other  hand,  the  man  who  has  stood  for  the 
rights  of  the  people  in  a  war  for  independence,  or  the 
overthrow  of  a  hated  despotism,  has  been  among  the  noblest 
figures  in  history.  A  term  which  would  include  within 
its  definition  every  soldier  who  fought  for  his  native  land 
in  the  war  of  the  Revolution,  every  Frenchman  who  stormed 
the  Bastile  in  1789,  every  soldier  who  took  up  arms  for 
the  South  in  the  Civil  War,  must  be  received  with  some 
modification,  in  the  light  of  attending  circumstances.  Those 
who  conscientiously  believed  that  they  were  right,  and  were 
acting  in  defense  of  their  liberties  and  the  interests  of 
their  fellow  men,  while  legally  classed  as  traitors,  have  been 
held  worthy  of  the  respect  of  mankind.    Nor  is  success  the 


FEDERAL  LAW  AK^D  EEDl^^AL  COtJT^TS  25 

sole  criterion,  but  much  depends  upon  the  number  and 
character  of  those  who  are  engaged.  A  single  man  may  be 
a  traitor, — a  body  of  men  may  be  guilty  of  treason.  But 
an  army  of  a  hundred  thousand  men  cannot  be  amenable 
to  the  laws  applicable  to  a  few  individuals,  though  the  casu- 
ist may  make  no  distinction  between  them.  The  wholesale 
condemnation  of  a  hundred  and  thirty-four  participants  in 
the  Monmouth  rebellion,  in  1865,  by  Jeffreys  in  the  ''Bloody 
Assizes"  has  ever  since  shocked  the  conscience  of  the  whole 
English  speaking  world. 

While  in  this  country  the  definition  of  treason  has  never 
changed,  and  probably  never  will  be  changed,  I  am  not 
aware  of  any  one  having  actually  suffered  the  penalty  of 
the  law  for  this  crime,  although  there  have  been  one  or 
two  convictions.  We  can  only  say  that  while  the  statute 
against  treason  is  not  obsolete,  the  state  of  the  country 
and  the  general  respect  for  the  law  has  fortunately  been 
such  as  to  have  afforded  very  few  occasions  for  its  practical 
enforcement. 

Analogous  Offenses.  There  are  a  few  other  analogous 
crimes  intended  to  cover  cases  where  the  proof  of  actual 
treason  is  incomplete,  but  the  act  is  such  as  threatens  the 
subversion  of  the  government  or  the  disturbance  of  public 
order.  These  are  misprison  or  concealment  of  the  treason 
of  others;  inciting  or  setting  on  foot  insurrections  against 
the  authority  of  the  United  States ;  carrying  on  correspond- 
ence with  foreign  governments  with  the  intent  of  influenc- 
ing the  conduct  of  such  governments  in  relation  to  contro- 
versies with  the  United  States,  or  to  defeat  the  measures 
of  the  Government;  sedition,  conspiracy  with  intent  to 
overthrow  the  Government,  opposing  its  authority  or  de- 
feating the  execution  of  its  laws;  or  recruiting  sailors  or 
soldiers  to  engage  in  armed  hostility  against  the  United 
States.  But  no  separate  discussion  of  these  is  necessary, 
as  prosecutions  under  them  are  exceedingly  rare. 

Neutrality  Laws.  Next  to  the  obligation  of  every  govern- 
ment to  protect  its  own  existence  is  the  analogous  duty 
of  avoiding  complications  with  foreign  nations  and  refus- 


26     FEDERAL  LAW  AND  FEDERAL  COURTS 

ing  to  intermeddle  in  wars  in  which  it  has  no  concern.  To 
permit  men  to  be  enlisted,  munitions  of  wars  to  be  furnished, 
or  ships  to  be  engaged  in  the  service  of  either  power  at 
war  with  another,  is  not  only  a  breach  of  good  faith  and  a 
destruction  of  international  relations,  but  a  positive  dan- 
ger, which  has  more  than  once  brought  us  to  the  verge  of 
war  with  European  powers.  Hence,  Congress  under  the 
name  of  neutrality  laws,  has  provided  for  the  punishment 
of  a  large  number  of  offenses,  such  as  accepting  commis- 
sions from  foreign  nations  in  time  of  war,  enlisting  in  the 
service  of  a  belligerent  State,  fitting  out  or  arming  vessels 
of  war  for  the  purpose  of  engaging  in  a  foreign  naval  serv- 
ice, augmenting  the  force  of  foreign  armed  vessels,  or 
organizing  military  expeditions  against  foreign  States  with 
which  we  are  at  peace.  Not  only  is  power  given  to  the 
courts  to  enforce  these  laws  by  the  arrest  of  persons  and 
the  seizure  of  any  property  concerned  in  these  unlawful 
enterprises,  but  the  President  is  authorized  to  compel  the 
departure  of  foreign  vessels,  or  their  owners  to  give  bond 
that  they  will  not  engage  in  hostilities  against  a  friendly 
power. 

These  neutrality  laws  are  not  intended,  however,  as  a 
suspension  of  intercourse  or  commerce  with  belligerent 
States.  Our  people  may  still  furnish  them  money,  pro- 
visions or  other  supplies  not  contraband  of  war,  though 
with  knowledge  that  they  are  to  be  used  for  military  pur- 
poses. Our  ships  of  war  may  give  asylum  to  foreign  refu- 
gees, though  belligerent — "a  privilege  frequently  accorded  to 
the  turbulent  peoples  of  South  America.  Foreign  bellig- 
erent vessels  may  resort  to  our  ports  for  repairs,  but  may 
be  required  to  leave  as  soon  as  the  repairs  are  finished.  Our 
vessels  may  even  carry  to  a  belligerent  country  articles 
contraband  of  war,  provided  their  officers  have  no  knowl- 
edge they  are  to  be  used  for  a  hostile  purpose.  In  most  of 
these  cases  the  question  of  intent  is  a  material  element. 

Frauds.  The  scope  of  governmental  functions,  and  the 
attempts  to  thwart  legislation  intended  for  the  public  good 
in  the  interest  of  a  few  individuals,  have  led  to  a  large 


FEDERAL  LAW  AND  FEDERAL  COURTS      27 

number  of  acts  to  circumvent  and  punisli  these  illegal  de- 
signs. These  include  the  forgery  of  public  records,  such 
as  patents,  deeds,  and  powers  of  attorneys,  false  persona- 
tions of  officers  and  individuals,  embezzling  of  public  prop- 
erty, presenting  fraudulent  claims  for  allowance,  conspir- 
acies, briberies,  enticing  soldiers  or  workmen  to  desert  the 
service  of  the  Government;  injuries  to  fortifications  or 
other  property,  depredations  upon  timber  lands  or  setting 
them  on  fire;  fraudulent  naturalization  papers, — in  short, 
the  general  principle  is  as  true  here  as  elsewhere,  that  wher- 
ever Congress  legislates,  it  exercises  the  commensurate 
power  of  making  such  legislation  effectual  by  providing 
punishment  for  those  who  seek  to  defeat  its  purposes.  It 
is  a  melancholy  commentary  upon  human  nature  that  wher- 
ever important  legislation  is  enacted  there  are  always  in- 
dividuals standing  ready  to  evade  it,  if  it  be  penal,  or  if 
it  be  remedial,  to  extend  its  operation  to  cases  never  con- 
templated by  Congress. 

hiterference  with  Oncers.  Connected  with  this  same 
general  subject  are  criminal  attempts  to  take  an  illegal  ad- 
vantage of  their  positions,  by  officers  of  the  Government, 
such  as  extortion  under  color  of  office,  giving  receipts  for 
larger  amounts  than  paid — an  offense  frequently  commit- 
ted by  agents  of  the  Government — hiring  clerks  at  a  lower 
salary  than  that  receipted  for,  the  unlawful  use  or  keep- 
ing of  public  moneys,  or  failure  to  render  accounts  for 
the  same,  soliciting  or  accepting  bribes  or  collecting  ille- 
gal fees,  as  well  as  several  other  offenses  applicable  espe- 
cially to  members  of  Congress,  who  do  not  always  observe 
the  distinction  between  their  public  duties  and  their 
professional  labors,  by  acting  as  agents  for  private  claim- 
ants and  receiving  pay  for  their  services  in  prosecuting 
such  claims  against  the  Government;  soliciting  political 
contributions  or  financial  aid  from  candidates  for  office, 
offenses  formerly  supposed  to  be  inseparably  connected 
with  hot  campaigns. 

Interference  with  Public  Justice.    Another  class  of  of- 
fenses is  connected  with  the  administration  of  public  jus- 


t6  FEDERAL  LAW  AND  FEDERAL  COURTS 

tice  in  llie  courts  of  the  United  States,  the  most  conspicu- 
ous of  these  being  perjury  or  false  swearing,  whether  before 
officers  of  the  United  States  or  of  the  State,  in  support  of 
claims  against  the  Government,  subornation  of  perjury, 
stealing  or  destroying  public  records,  bribing  judicial  offi- 
cers, witnesses  or  jurors,  obstructing  process,  assaulting 
officers  of  courts,  rescuing  prisoners,  and  extorting  money 
under  threats  of  giving  information. 

Counterfeiting.  Among  the  powers  vested  in  Congress 
none  is  more  important  than  that  of  coining  money,  regu- 
lating its  value  and  providing  for  the  punishment  of  coun- 
terfeiting, which  under  the  old  English  law  was  treated  as 
treason.  Grimes  against  the  currency  have  always  been  a 
fertile  source  of  criminal  business  in  courts  of  the  United 
States.  Included  in  this  prohibition  of  counterfeiting  are 
not  only  the  coin  of  the  United  States,  but  every  paper 
security  in  the  form  of  bonds,  notes,  certificates,  bills, 
checks,  national  bank  notes,  revenue  or  postage  stamps, 
— in  short,  every  form  which  those  securities  may  take  in 
the  transactions  of  the  Government,  and  issued  imder  its 
authority.  The  prohibition  extends  not  only  to  forging 
or  counterfeiting  of  such  securities,  but  to  the  uttering  or 
passing  of  the  same,  or  to  the  bare  possession  of  counter- 
feited securities,  if  such  possession  be  with  intent  to  put 
them  in  circulation;  to  the  use  or  possession  of  plates  or 
dies  for  manufacturing  the  same;  or  to  the  unauthorized 
use  of  genuine  plates.  It  is  a  crime  even  to  photograph 
them  with  the  purpose  of  using  them  as  genuine.  These 
provisions  are  also  made  applicable  to  securities  issued 
under  authority  of  a  foreign  government  or  a  foreign  bank. 
An  analogous  offense  is  that  of  clipping,  defacing,  lighten- 
ing, debasing  coin  by  alloy,  or  the  imitation  of  bank  notes 
or  securities  by  advertising  cards. 

In  the  enforcement  of  these  provisions  ample  authority 
is  given  to  the  courts  to  issue  search  warrants  for  the  entry 
of  suspected  dens  of  counterfeiters,  and  to  seize  and  take 
possession  of  any  property  found  there  and  apparently 
intended  for  illegal  use.    A  competent  force  of  detectives 


FEDERAL  LAW  AND  FEDERAL  COURTS      29 

is  constantly  kept  in  the  service  of  the  Treasury  Depart- 
ment, to  be  despatched  to  parts  of  the  country  where  an 
unusual  amount  of  counterfeited  money  is  being  put  in  cir- 
culation. The  importance  of  preserving  the  currency  of 
the  country  from  alloy  or  forgery  is  best  appreciated  by 
those  who  have  traveled  in  Southern  Europe  and  the  Orient, 
where  constant  efforts  are  made  to  put  off  on  the  unsus- 
pecting stranger  debased  coins  or  counterfeited  money.  It 
is  one  of  the  principal  duties  of  a  sovereign  State  to  pro- 
vide its  citizens  with  a  safe  and  convenient  currency,  and 
to  protect  its  monopoly  in  that  particular  against  unau- 
thorized interference. 

Postal  Crimes.  Under  the  constitutional  authority  of 
Congress  "to  establish  post  offices  and  post  roads,"  it  has 
inaugurated  a  vast  system  for  the  transmission  of  letters 
and  other  mail  matter,  opened  post  offices  in  every  city  and 
village,  set  up  letter  boxes  upon  the  principal  streets,  made 
contracts  with  railways,  steamboats,  and  private  individuals 
for  the  carriage  of  mails,  established  offices  for  the  regis- 
tering of  letters  and  money  orders,  and,  as  the  last  expres- 
sion of  its  will  to  popularize  this  branch  of  public  service, 
has  opened  banks  at  the  leading  post  offices  for  the  deposit 
of  the  people 's  savings. 

It  is  needless  to  say  that  the  success  of  this  system 
requires  elaborate  penal  provisions  for  the  security  of  mail 
matter  and  of  every  person  engaged  in  its  transmission. 
So  careful  is  this  oversight  that  it  may  be  said  that  every 
step  in  the  route  of  a  letter,  from  the  box  at  the  corner 
of  the  street  where  it  is  deposited  to  the  moment  of  its 
delivery  by  the  postman  at  its  destination,  is  subject  to 
the  scrutiny,  supervision  and  protection  of  the  Government. 
It  is  made  a  crime  not  only  to  assault  or  hinder  a  carrier 
in  his  duties,  to  open  or  rob  a  post  office  or  letter  box,  to 
steal  or  counterfeit  its  stamps ;  but  penalties  are  denounced 
upon  employes  for  embezzling  or  even  opening  letters 
entrusted  to  their  care,  even  though  nothing  more  was 
contemplated  than  the  gratification  of  a  curiosity  to  pry 
into  another's  business  or  secrets. 


30     FEDEKAL  LAW  AND  FEDERAL  COURTS 

The  carriage  of  the  mails  is  a  Government  monopoly 
which  is  preserved  by  penalties  inflicted  upon  those  who 
set  up  private  post  offices,  or  carry  mails  without  the  author- 
ity of  law.  A  person  cannot  legally  wear  the  uniform  or 
badge  of  a  letter  carrier,  or  paint  the  words  **U.  S.  Mail'* 
upon  any  vehicle  without  authority.  Penalties  are  also 
provided  for  injuring  or  stealing  from  mail  bags,  forcing 
locks  or  keys,  as  well  as  for  those  who  make  use  of  the 
mails  for  the  transmission  of  illegal  or  obscene  matter,  or 
for  the  concoction  and  circulation  of  schemes  to  defraud; 
and  the  Postmaster  General  is  given  authority  to  exclude 
from  the  mails  prospectuses  or  advertisements,  whenever 
he  is  satisfied  from  evidence  and  enquiry  that  they  are 
intended  to  cover  devices  for  obtaining  money  without  any 
reasonable  prospect  of  return.  Included  in  this  category 
are  all  lotteries  or  gift  enterprises. 

Interstate  Commerce.  The  constitutional  power  of  Con- 
gress **to  regulate  commerce  between  the  several  States 
and  with  foreign  nations"  has  been  expanded  in  recent 
years  to  assume  largely  the  control  of  commerce  to  an 
extent  probably  not  originally  contemplated  by  the  f ramers 
of  the  Constitution,  but  which  has  become  imperative  by 
reason  of  the  fact  that  railways  and  other  transportation 
companies  are  each  year  extending  their  routes  through  dif- 
ferent States,  where  the  jurisdiction  of  the  State  legisla- 
tures and  courts  is,  of  course,  limited  in  each  case  by  its 
State  lines. 

An  important  step  in  this  direction  was  taken  in  1887 
by  the  creation  of  the  Interstate  Commerce  Commission, 
by  which  authority  was  given  to  the  Commission  to  regu- 
late commerce  between  the  States,  make  certain  restrictions 
upon  prices  and  discriminations,  and  to  suppress  the  system 
of  rebates,  which  was  threatening  to  throw  the  whole  busi- 
ness of  the  country  into  the  hands  of  a  few  corporations. 
Supplemental  to  this,  there  were  punishments  provided  for 
carrying  explosives,  except  under  stringent  regulations  of 
the  Commission  to  avoid  danger;  importing  from  abroad 
or  carrying  lottery  tickets  between  the  States ;  placing  re- 


FEDERAL  LAW  AND  FEDERAL  COURTS      31 

strictions  upon  the  transmission  of  intoxicating  liquors, 
obscene  books  or  pictures,  or  importing  objectionable  birds 
or  other  animals,  or  game  killed  in  violation  of  State  laws. 

Illegal  Combination,  Closely  connected  with  this  general 
subject  are  statutes  to  penalize  contracts  or  combinations 
in  restraint  of  trade,  or  to  monopolize  trade  between  the 
several  States  by  the  creation  of  trusts.  During  the  past 
twenty  years  these  have  proved  a  fruitful  source  of  litiga- 
tion, not  only  by  bills  filed  with  a  view  of  dissolving  the 
illegal  corporations,  but  in  several  instances  by  criminal 
prosecutions  against  parties  charged  with  the  formation 
of  monopolies.  This  class  of  legislation,  however,  is  lim- 
ited by  the  authority  given  by  the  Constitution  to  regulate 
commerce  with  foreign  nations  and  between  the  several 
States,  and  has  no  application  to  commerce  wholly  within 
the  boundaries  of  a  particular  State.  In  the  early  days 
of  the  Kepublic,  commerce  was  limited  largely  to  places 
within  the  same  State.  But  with  the  development  of  rail- 
ways, the  telegraph  and  steam  vessels,  it  has  of  late  years 
assumed  a  far  wider  scope,  and  the  bulk  of  modern  com- 
merce is  rather  interstate  than  intrastate. 

Slave  Trade  and  Peonage.  Another  class  of  cases  cog- 
nizable by  the  Federal  courts  is  aimed  at  those  engaged 
in  slave  trade,  or  in  the  establishment  of  peonage.  Slave 
trade  on  a  large  scale  has  practically  ceased  since  eman- 
cipation of  slaves  in  this  country,  and  indeed,  has  ceased 
to  exist  all  over  the  world,  except  to  a  limited  extent  in 
Africa  and  the  Orient.  But  attempts  are  constantly  made, 
even  in  this  country  to  reestablish  it  under  the  name  of 
peonage,  which  is  defined  to  be  holding  a  person  in  servi- 
tude for  the  payment  of  a  debt.  This  is  ordinarily  car- 
ried out  by  advancing  a  small  sum  of  money  to  a  proposed 
laborer,  usually  a  negro,  taking  him  into  service  and  com- 
pelling him  to  serve  until  the  debt  is  paid.  As  the  laborer 
is  ordinarily  of  the  most  ignorant  class,  a  skillful  manipu- 
lation of  his  accounts  will  keep  him  always  in  debt,  and 
become  an  excuse  for  a  perpetual  servitude.  This,  Con- 
gress has  declared  to  be  illegal  under  the  power  given  it 


32     FEDERAL  LAW  AND  FEDERAL  COURTS 

by  the  Thirteenth  Amendment,  abolishing  slavery  and 
involuntary  servitude. 

Elective  Franchise.  Somewhat  analogous  to  these  are 
crimes  in  connection  with  the  exercise  of  the  elective  fran- 
chise and  the  civil  rights  of  citizens.  This  legislation  be- 
came necessary  to  give  full  force  and  effect  to  the  Four- 
teenth and  Fifteenth  Amendments  of  the  Constitution  en- 
franchising the  negro.  By  virtue  of  it  Congress  has  pro- 
vided for  the  punishment  of  those  who  conspire  to  injure 
him  in  the  enjoyment  of  his  civil  rights,  or  to  set  up  State 
laws  as  an  excuse  therefor;  or  to  prevent  any  oflBcer  by 
force  or  threat  from  accepting  an  office  or  discharging  its 
duties.  The  intimidation  of  voters  by  the  presence  of 
armed  men  at  election  polls,  or  any  interference  with  elec- 
tion officers  by  Army  or  Navy  officials  of  the  United  States 
is  subject  to  a  like  punishment.  It  may  be  said  that  these 
statutes  have  proved  ineffective  to  preserve  to  the  negro 
his  right  to  vote  in  the  Southern  States,  where  popular 
opinion  has  proved  to  be  even  more  potent  than  the  Con- 
stitution and  laws  of  the  United  States.  It  is  a  lesson 
which  has  been  often  repeated,  that  no  law  can  be  enforced 
against  the  opposition  of  a  large  majority  of  the  people 
affected  by  it. 

§  8.  Summary.  These  are  a  summary  of  the  principal 
criminal  laws  of  the  United  States,  but  in  addition  thereto 
there  is  a  vast  number  of  penal  provisions,  contained  in 
subordinate  clauses  of  the  administrative  laws,  notably 
those  for  the  collection  and  disbursement  of  the  public 
revenues  and  the  protection  of  public  lands,  and  other  prop- 
erty. These,  however,  are  quite  too  numerous  for  sepa- 
rate mention.  Taken  in  connection  with  the  criminal  code, 
the  whole  constitutes  an  immense  mass  of  legislation  nec- 
essary to  the  adequate  protection  of  the  citizen,  but  with 
which  the  great  body  of  the  people  rarely,  if  ever,  come  in 
actual  contact. 


EXAfllNATlON   PAPER. 


FEDERAL  LAW  AND  FEDERAL 
COURTS 


Read  Carefully:  Place  your  name  and  full  address  at  the  head  of  the 
paper.  Any  cheap,  light  paper  like  the  sample  previously  sent  you  may  be 
used.  Do  not  crowd  your  work,  but  arrange  it  neatly  and  legibly.  Do  not 
copy  the  answers  from  the  Instruction  Paper;  use  your  ovm  wordB,  so  that  jcc 
may  be  sure  you  understand  the  subject. 


1.  What  were  the  main  defects  of  the  Articles  of  Confedera- 
tion of  1778? 

2.  What  cause  contributed  principally  to  the  adoption  of  the 
Constitution? 

3.  In  what  cases  has  the  Supreme  Court  original  and  appellate 
jurisdiction? 

4.  What  is  the  distinction  between  the  Articles  of  Confedera- 
tion and  the  Constitutionf 

5.  State  the  extent  of  the  Federal  Judicial  Power. 

6.  What  are  cases  arising  under  the  Constitution  and  Laws 
of  the  United  States? 

7.  What  are  cases  of  admiralty  and  maritime  jurisdiction: 
(a)  as  affected  by  the  character  of  the  waters;  (b)  as  affected  by  the 
character  of  the  vessels;  (c)  as  affected  by  the  character  of  the  case? 

8.  What  are  maritime  tortsf 

9.  What  are  cases  to  which  the  United  States  are  a  party? 

10.  Wliat  are  cases  between  the  States? 

11.  What  are  cases  between  citizens  of  different  States?   Who 
are  citizens?    Who  constitute  corporations? 

12.  What  are  cases  by  and  against  aliens?    Who  are  aliens? 

13.  From  what  clauses  of  the  Constitution  does  the  power  of 
Congress  to  enact  criminal  laws  arise? 

14.  How  are  criminal  cases  divisible? 

15.  What  localities  give  the  Federal  courts  exclusive  juris- 
diction therein  of  high  seas  and  reserved  lands? 


FEDERAL  LAW  AND  FEDERAL  COURTS 

16.  What  is  the  general  nature  of  the  oflPenses  of  which  the 
Federal  courts  have  jurisdiction? 

17.  What  are  the  crimes  against  the  existence  and  structure 
of  the  Government? 

18.  State  crimes  against  the  Neutrality  Laws. 

19.  State  generally  what  are  frauds  against  the  Government. 

20.  Define  interference  with  officers. 

21.  Define  crimes  of  interference  with  public  justice. 

22.  Define  crimes  against  the  currency. 

23.  Define  crimes  against  the  postal  service. 

24.  Define  crimes  against  interstate  commerce. 

25.  What  are  illegal  combinations  in  restraint  of  trade? 

26.  Define  slavery  and  peonage. 

27.  Define  crimes  against  the  Elective  Franchise. 

After  completins  the  work,  add  and  sign  the  following  statement: 

I  hereby  certify  that  the  abore  work  is  entirely  my  own. 

(Signed) 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


A     000  682  575     6 


